Blue Mass Group

Reality-based commentary on politics.

Comments

  1. The asylum angle seems like a SSM work-around to me, and risks diluting more pressing reasons for granting asylum; Judge Cramer considered the facts, and denied the claim.  How unreasonable was his decision, based on current law?

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    p>Without a change in the Defense of Marriage Act (a Clinton-era law, I think), wouldn’t Holder would be wrong to overturn it by fiat?  Congress should change the law if that’s what it takes.  Until that is done, won’t UAFA violate DOMA?

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    p>Given that federal law governs, shouldn’t Mr. Oliveira apply through normal immigration channels?  Kerry can call ICE and expedite his application.  

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    p>Alternatively, Mr. Oliveira can sneak into the US and settle in MA.  We welcome illegal immigrants.

    • In your great wisdom you have concluded this?  On what grounds?  Kerry, who has reviewed the documents that I doubt you have, said he believes there is real cause for this guy to be granted asylum based on his history of being raped for being gay.  That has nothing to do with his marriage status.  Are you saying that Kerry is lying about the facts?

      • “Reasonable men differ.”  Same facts, different interpretation.  

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        p>If Judge Cramer is an knowledgeable jurist with experience on asylum petitions, then I defer to his judgment.  It helps that I think Kerry is a nitwit, and I do not trust his judgment on anything except fire hydrant relocation.

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        p>My comment about an SSM work-around is logical:

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        p>(1) the courts have denied Oliveira’s asylum petition;
        (2) MA constituent Coco appeals to Sen. Kerry;
        (3) Kerry appeals to Attn. General Holder to circumvent standing law (DOMA) and a judicial ruling (Laurel, you call this a “re-examination [of] a Bush-era denial of asylum” based upon same-sex marriage.  I call it an end-run around the law);
        (4) that Kerry is sponsoring UAFA is strong evidence that his motivations on the Oliveira matter are not strictly based on asylum considerations but on SSM grounds, too.  His sponsorship of UAFA isn’t mentioned in the NYT article, so hat tip to you.

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        p>Setting aside the national SSM debate, if Kerry is trying to circumvent (a) the courts and (b) standing law as applied in DOMA, then I’m offended.

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        p>If he knows Holder’s hands are tied, then he’s grandstanding (I’m shocked, shocked!)

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        p>Why have courts or laws in the first place?  Why not simply apply for asylum to a Senator’s office?  Why not make it a political rather than a legal process?

        • Numerous otherwise apparently excellent judges make hideous decisions because their gay-hating overtakes their reasoning or political ambitions.  Just look as the state supreme court DOMA challenges in NY and WA.

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          p>The point of the diary is to show that eligible people are still being turned away because the decision-makers are gay-haters.  The fact that the man is married to a Massachusetts citizen is significant in that it sheds light on how devastating this hate is to entire American families, not just to individual foreigners.

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          p>As for Holder, it’s called politics, bostonshepard.  As for his hands being tied, I think that when it comes to immigration, the federal government often makes exceptions and can actually do whatever it wants. Congress has braod powers here.  It is conceivable that Kerry is trying to prompt Holder to request that Congress address these issues, since he’s now been named, in his capacity as AG, in 3 DOMA lawsuits, not to mention getting pressure in this particular case.  Of course this is just a guess from me, since I’m far from privy to Sen. Kerry’s plans.

          • And last time I checked, Congress wrote and passed DOMA and they wrote and passed our immigration laws.  Because the judge follows these laws and denies Mr. Oliveira asylum he’s a gay-hater?  Are you a mind reader?

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            p>52.24% of Californians who voted for Prop 8 … haters.  The majority of the US Congress which passed DOMA (85-14 in the Senate and 342-67 in the House) … haters.  Bill Clinton, who signed the bill into law … a hater.

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            p>Disagreement with your beliefs = hate?  Is this your thinking?

            • the judge wasn’t required by any law to deny asylum because the applicant is gay.  the applicant was asking for asylum on the grounds that he was persecuted in his home country because of his sexual orientation, not because of his marital status to an american.  so if the judge chose to deny asylum on the basis that the man is gay, then yes, he is an anti-gay hater.  do you think such people don’t exist?

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              p>and yes, people who vote to excise fellow citizens from equal protection of the law solely because they are gay are indeed haters.  own it.

              • It says the judge “denied the asylum claim, saying he ‘was never physically harmed’ by the rape.”  It does not say that asylum was being denied because he was gay.  If this is the same sort of standard that would be applied to, say, a woman in Turkey, or a Jesuit in Kenya, then how is the Oliveira ruling inconsistent with asylum law?

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                p>Does Oliveira have legal recourse in Brazil against the rape?  If so, why would amnesty be granted?

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                p>Maybe asylum law is anti-gay (I’m putting words in your mouth) but that is not Judge Cramer’s call to make.  His job is to interpret the law as written.  This does not make him a gay-hater.

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                p>I see nothing in the article that would lead me to believe the application of the law by Judge Cramer was anything but uniform.

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                p>But by your standard, anyone who rejects any sort of request from an homosexual is a gay-hater.  

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                p>Perhaps a lesbian’s loan is denied … hater.  Or a gay man is caught shoplifting and is prosecuted … that’s gay hating.  How about a gay student being denied entry to college … that’s anti-gay, no?

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                p>God forbid I ever hire a gay employee then need to lay them off for economic reasons, or worse, fire them for cause … that’s gay hating and a juicy lawsuit.

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                p>Using DOMA as ipso facto proof, the majority of Americans, including President Clinton, are gay-haters.  Do I have that right?

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                p>I wonder what my disagreement with your analysis of the Oliveira case make me.

                • I suppose one can’t expect the media to fit all of the background and every detail into the latest article.  There have been other stories that may help answer the questions raised here:

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                  p>Judge Cramer (who was campaign treasurer for N.H. Sen. Judd Gregg) was in fact an illegal political appointment

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                  p>

                  Cramer was then hired by the Justice Department’s tax division and was briefly lent to the department’s Office of Immigration Litigation. Ashcroft approved him as an immigration judge in March 2004. The Government Accountability Office, a legislative watchdog, criticized the appointment, saying, “Converting a Schedule C [political] appointee with less than 6 months of immigration law experience to an immigration judge position raises questions about the fairness of the conversion.” (See Washington Post – http://www.washingtonpost.com/…

                  He had virtually no immigration experience and was very likely hired precisely because he is anti-gay.  

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                  p>The Bush Department of Justice, itself, concluded in the July 28, 2008 U.S. Department of Justice report, “An Investigation of Allegations of Politicized Hiring by Monica Goodling and Other Staff in the Office of the Attorney General” (http://www.usdoj.gov/oig/special/s0807/final.pdf)that Cramer was an illegal appointment, lacked basic immigration experience and apparently passed the DOJ’s anti gay litmus test. According to the DOJ investigation:

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                  “We also found that many of Goodling’s and Williamson’s interview notes reflected that the topics of abortion and gay marriage were discussed during interviews.  It appeared that these topics were discussed as a result of the question seeking information about how the applicant would characterize the type of conservative they were.”

                  Oliveira applied for asylum under a treaty whose full name is “Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment.” Cramer ruled that Oliveira was never tortured in the physical sense, but the Convention Against Torture is much broader than that:

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                  p>Torture is defined as any act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for such purposes as obtaining from him or her or a third person information or a confession, punishing him or her for an act he or she or a third person has committed or is suspected of having committed, or intimidating or coercing him or her or a third person, or for any reason based on discrimination of any kind, when such pain or suffering is inflicted by or at the instigation of or with the consent or acquiescence of a public official or other person acting in an official capacity.
                  http://cfr.vlex.com/vid/208-im…

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                  p>Rape is frequently recognized as persecution in asylum petitions (http://www.thefreelibrary.com/New+INS+asylum+guidelines+address+politically+motivated+rape,+sexual…-a017746238)

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                  p>Just the facts.

        • the initial denial based on the judge’s view that rape did not harm Oliveira. Kerry then goes on to make a humanitarian plea.

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          p>Kerry also is supporting the action of some MA people to get DOMA declared unconstitutional. You are choosing what laws you want to consider. The constitution does not give the federal government the right to define marriage – it says nothing as to who does. The constitutions explicitly gives to the state everything not explicitly given to the federal government. They want to live in MA where they are legally married.

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          p>Kerry has always been in favor of equal rights – even while he preferred civil union to marriage. As to not having courts or laws, Kerry is asking Holder who is the highest person in the federal justice system to review a decision made by a judge below him. That IS staying within the court system. How is Holder, the head of the justice department appointed by Obama and approved by the senate more political than a federal judge appointed by Bush?

          • (1) Judiciary is one of the other 2 branches.  Holder and the Justice Department are part of the Executive Branch and have no authority to review let alone overturn any court decision.  Furthermore, as the country;s top law enforcement officer, Holder would be a breach of his duties not to enforce DOMA.

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            p>(2) I find your defense of the 10th Amendment ironic.  There are many powers which are not specifically mentioned in the Constitution but the federal government has passed laws controlling or restricting our rights.  Is DOMA the first time in your progressive life you’ve objected to Washington creating powers not specifically enumerated?  Is the Warren court’s abortion decision then not valid?  I don’t find abortion mentioned in the Constitution.

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            p>(3) I also find ironic your rather negative opinion of politically motivated jurisprudence.  That’s what progressives are all about, as long as it’s your politics being applied.

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            p>I don’t know anything about Judge Cramer except he’s about middle of the road in the percentage of immigration denials.  One hopes he’s applying the laws as written.

            • Immigration judges are not Article III judges, and they are not within the judiciary.  They are within the Justice Department (executive branch), and Holder has direct-line authority to reverse their decisions.  Can’t tell whether you or Karenc are aware of that.

              • Justice department, but I wrote the third point too quickly and wrote it very inaccurately.

              • And so stand corrected.  Good catch David.  I learn something every day here.

            • 1) The immigration judges report into the justice department and are appointed by the President. As I also said, Kerry’s letter specifically asked for a review of the asylum request. If he saw sufficient reason to grant asylum, I assume he could overrule the judge.

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              p>2) I find your rejection of the 10th amendment as ironic as you find my defense of it.

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              p>Using a metric of how Cramer rules on immigration, would not reflect if sexual preference led him to the idiotic statement that he was not harmed by being raped.  

              • if there are legal protections available in Brazil for Mr. Oliveira, against rape, against sexual discrimination, why would there be grounds for asylum here?

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                p>I thought asylum was only for individuals who had no other recourse or remedies in their home country, like women or Christians in Saudi Arabia, or homosexuals in the previously Taliban-controlled Afghanistan, and were in danger of death or imprisonment.

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                p>I don’t see Oliveira qualifying (my lay opinion.)  That is why I originally labeled his application as a “SSM work-around.”  Maybe I should have said “and immigration work-around.”

              • A British citizen is raped in London.  Is that grounds for granting them asylum in the US?

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                p>How does Oliveira’s case differ?

                • England is not on the U.S. State Department’s list of the world’s worst human rights offenders, but Brazil is often cited. Immigration judges usually rely on the State Department for guidance.  Even the Bush State Department said:

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                  “Several NGOs documented the existence of skinhead, neo-Nazi, and “machista” (homophobic) gangs that attacked suspected homosexuals in cities including Rio de Janeiro, Porto Alegre, Salvador, Belo Horizonte, and Brasilia (see Section 5). In some cases, these gangs allegedly included police officers.”

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                  p>http://www.state.gov/g/drl/rls…

  2. But it appears from your post that Senator Kerry is arguing for asylum. I agree with your take on this case, but think that the systematic rape and abuse of women which occurs in many countries is no less traumatic and much more widespread.
    Would this apply to women who are in danger?

    • Of course the asylum process is open to women and men alike.

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      p>I will not play pain olympics.  It doesn’t matter if more women may be subject to rape than men.  What matters is that one man with a credible case is asking for asylum but had been denied.  The implication of Kerry appealing his earlier denial is that the judge denied the request because the judge was a homophobe.

      • The majority of refugees are women and children. The majority of asylum seekers are men.
        Asylum is granted for political persecution, not crimes.
        If a man is beaten by soldiers it is a prima facie case for asylum. If a woman is beaten and raped by soldiers it is a prima facie case of a crime under current law. The UK estimates between 50% – 70% of women refugees are victims of rape.
        Women are not a “group” under current immigration law any more than homosexuals.
        Wouldn’t it be more just to argue for the entire class of battered human beings than one individual?

  3. The more cases like this there are, especially as more states embrace marriage or civil unions, the more untenable this situation will be.  After all if we start with the premise that states get to define marriage then this case is a slam dunk.  It appears these two are duly married in accordance to the laws of the Commonwealth, and as such should be treated as married by immigration authorities.

    • Not Massachusetts law.

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      p>However absurd you think DOMA is, DOMA prevails.  Change DOMA if you can.  If not, Mr. Coco and Mr. Oliveira are shit out of luck unless Kerry can expedite a visa renewal or permanent immigrant status.

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